Rule 5.220. Court-Ordered Child Custody Evaluations

2017 California Rules of Court

Rule 5.220. Court-ordered child custody evaluations

(e)Scope of evaluations

All evaluations must include:

(1)A written explanation of the process that clearly describes the:

(A)Purpose of the evaluation;

(B)Procedures used and the time required to gather and assess information and, if psychological tests will be used, the role of the results in confirming or questioning other information or previous conclusions;

(C)Scope and distribution of the evaluation report;

(D)Limitations on the confidentiality of the process; and

(E)Cost and payment responsibility for the evaluation.

(2)Data collection and analysis that are consistent with the requirements of Family Code section 3118; that allow the evaluator to observe and consider each party in comparable ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each child's developmental needs; the quality of attachment to each parent and that parent's social environment; and reactions to the separation, divorce, or parental conflict. This process may include:

(A)Reviewing pertinent documents related to custody, including local police records;

(B)Observing parent-child interaction (unless contraindicated to protect the best interest of the child);

(C)Interviewing parents conjointly, individually, or both conjointly and individually (unless contraindicated in cases involving domestic violence), to assess:

(i)Capacity for setting age-appropriate limits and for understanding and responding to the child's needs;

(ii)History of involvement in caring for the child;

(iii)Methods for working toward resolution of the child custody conflict;

(iv)History of child abuse, domestic violence, substance abuse, and psychiatric illness; and

(v)Psychological and social functioning;

(D)Conducting age-appropriate interviews and observation with the children, both parents, stepparents, step- and half-siblings conjointly, separately, or both conjointly and separately, unless contraindicated to protect the best interest of the child;

(E)Collecting relevant corroborating information or documents as permitted by law; and

(F)Consulting with other experts to develop information that is beyond the evaluator's scope of practice or area of expertise.

(3)A written or oral presentation of findings that is consistent with Family Code section 3111, Family Code section 3118, or Evidence Code section 730. In any presentation of findings, the evaluator must:

(A)Summarize the data-gathering procedures, information sources, and time spent, and present all relevant information, including information that does not support the conclusions reached;

(B)Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews;

(C)Only make a custody or visitation recommendation for a party who has been evaluated. This requirement does not preclude the evaluator from making an interim recommendation that is in the best interest of the child

American Psychologist © 1994 by the American Psychological Association

July 1994 Vol. 49, No. 7, 677-680 For personal use only--not for distribution.

Guidelines for Child Custody Evaluations in Divorce

Proceedings

7. The psychologist avoids multiple relationships.

Psychologists generally avoid conducting a child custody evaluation in a case in which

the psychologist served in a therapeutic role for the child or his or her immediate family

or has had other involvement that may compromise the psychologist's objectivity. This

should not, however, preclude the psychologist from testifying in the case as a fact

witness concerning treatment of the child. In addition, during the course of a child

custody evaluation, a psychologist does not accept any of the involved participants in the

evaluation as a therapy client. Therapeutic contact with the child or involved participants

following a child custody evaluation is undertaken with caution.

A psychologist asked to testify regarding a therapy client who is involved in a child

custody case is aware of the limitations and possible biases inherent in such a role and

the possible impact on the ongoing therapeutic relationship. Although the court may

require the psychologist to testify as a fact witness regarding factual information he or

she became aware of in a professional relationship with a client, that psychologist should

generally decline the role of an expert witness who gives a professional opinion regarding

custody and visitation issues (see Ethical Standard 7.03) unless so ordered by the court.

Scope of Competency

In order for the therapist to provide his or her professional recommendations regarding a particular topic or issue, he or she must possess a sufficient degree of education, training and experience to competently render such an opinion. Consequently, a therapist who offers his or her assessment of, or recommendations concerning, some issue, while lacking the competency to do so, may be accused of engaging in unprofessional conduct.6

Dual Relationships/Conflicts of Interest7 8 9

A therapist is expected to avoid performing multiple roles for the same clients or treatment units, particularly when doing so is likely to impair his or her professional judgment, or where there is a potential conflict of interest. There is a potential conflict of interest, when a treating therapist provides an evaluation of his or her psychotherapy client for use in a legal proceeding.

Bias/Lack of Objectivity10 11

A therapist is expected to remain impartial in a legal proceeding and to avoid compromising his or her judgment. When a therapist offers an opinion or recommendation regarding his or her psychotherapy client, for use in a legal matter, he or she may be subject to an allegation that his or her opinion was biased, because of his or her concurrent role as the person’s therapist. Should the opinion concern a legal issue such as custody, an aggrieved party may decide to complain of bias, and point out that opinions regarding custody are supposed to be issued by individuals who have met specific requirements and guidelines.12

Disclosing the Limits of Opinions/Offering Opinions About Persons Not Evaluated13

It is unethical for a therapist to offer an opinion about a person that he or she has not evaluated. Furthermore, it is expected that a therapist will disclose the limits of the information upon which his or her opinion is based. Consequently, when a therapist offers an opinion which describes the alleged problems of some person whom he or she has never met, there is a significant possibility that the individual may accuse the therapist of unethical conduct.

§4982(s), Business & Professions Code, Performing or holding oneself out as being able to perform professional services beyond the scope of one’s competence, as established by one’s education, training or experience is unprofessional conduct.

Association of Family Conciliation Courts Child Custody Guidelines:

P.2 EVALUATORS

Child custody evaluators are qualified mental health professionals who

function as impartial examiners. (therapists are not impartial, they are biased inherently due to the fact that they had developed a therapeutic alliance with their clients)

Evaluations shall be performed by qualified mental health professionals who are part of a family court

system or carried out privately by qualified individuals or teams. [Refer to section 1 for information

regarding qualifications.] Regardless of the manner in which arrangements for their services have

been made and regardless of the source of remuneration, evaluators shall always function as impartial

examiners.

P.3 SCOPE OF EVALUATORS’ OBLIGATIONS

8. ROLE CONFLICT AND DUAL ROLE ISSUES

8.1 MAINTAINING OBJECTIVITY

Child custody evaluators shall strive for objectivity and shall take

reasonable steps to avoid multiple relationships with any and all

participants of an evaluation.

The responsible performance of a child custody evaluation requires that evaluators be able to maintain

reasonable skepticism, distance, and objectivity. For this reason, evaluators shall take reasonable

steps to avoid multiple relationships. Evaluators shall recognize that their objectivity may be impaired

when they currently have, have had, or anticipate having a relationship with those being evaluated,

with attorneys for the parties or the children, or with the judges. Evaluators shall recognize that

relationships cannot be time delimited; specifically, prior relationships or the anticipation of future

relationships may have the same deleterious effects upon evaluator objectivity as current relationships

would have.

8.2 DISCLOSURE OF POTENTIAL CONFLICTS

Child custody evaluators shall disclose any and all professional and

social relationships with any subject of the evaluation, attorney or judge

involved in the proceeding.

It is recognized that in some geographic areas evaluators may not be able to avoid professional or

social relationships with individuals whom they may subsequently be asked to evaluate, with attorneys

for those individuals, or with judges hearing the disputes. When avoiding multiple relationships is not

feasible, evaluators shall be alert to the ways in which their objectivity may be impaired and prior to

accepting an appointment, they shall provide a reasonably detailed written disclosure of current, prior,

or anticipated relationships with others involved in the litigation. Such disclosure shall be made in a

timely manner.

8.3 DEALING WITH UNAVOIDABLE MULTIPLE RELATIONSHIPS

Multiple relationships may be unavoidable in some jurisdictions. When

an evaluator is asked or ordered to function in multiple roles and where

doing so can be avoided, the child custody evaluator shall have the

affirmative duty to inform the appointing agent(s) of the disadv